POL00025171 - Meeting with Baroness (Lucy) Neville Rolfe, Parliamentary Under Secretary of State - Tuesday 19 July 2016 - Tracked Comments
Private & Confidential ~
Subject to Legal Privilege
Meeting with Baroness (Lucy) Neville Rolfe, Parliamentary Under Secretary of State - Tuesday 19
July 2016
Background
1
You most recently met the Minister ef-on 27 April 2016. During this meeting you provided an
update on the progress made in respect of your Review. You also noted that given legal
proceedings had been issued against POL, it was only right that POL considered what implications
these may have on the shape of any output from the Review-may-take,
POL has since received a Letter of Claim and expects the claim to be formally ‘served’ before the
4410 August deadline. Further, you have received very strong advice from Leading Counsel that
the work being undertaken under the-aegis-of your Review should come to an immediate end,_it
is also likely that similar points wiil be addressed through the litigation process. , andinstesdthe
RP ET SET
‘The Minister’s office have confirmed that they understand (and indeed anticipated) the need for
prioritising the litigation and therefore, that work would cease on your Review.
The Minister has been briefed by her officials. Our understanding is that she does not wish to
challenge this decision, but would like to better understand the reasons underpinning the legal
advice received (see 13 below).
Subsequent to the meeting on Tuesday we intend to send the Minister the drafted letter
previously shared with you, which will formalise your decision. Further, it has been proposed that
the POL legal team should provide a briefing to BIS lawyers, and we are happy to facilitate thisI
Speaking Notes
6
My original undertaking was to review whether POL's lant of the complaints made by
Applicants to the Complaint Review & Mediation Scheme; had_reasonaivly considered
postmaster's clams and appropriately defended Post Office's own position.was-reasonable-and
POLest-Gtéfice 4 appointed jonathan Swift QC to conduct an independent assessment of the work
that had been done and provide advice touneas to whether anything more could now reasonably
be done to address these complaints.
My letter of 4 March 2016, set out further information about the approach to the Review, the
scope of the work undertaken and Jonathan Swift QC’s initial findings. It also set out my plans for
bringing this piece of work to a conclusion. Good progress had been made in all areas, despite it
being complex, inherently costly, and time consuming ~ particularly the technical testing of the
Horizon system itself,
However, in April POL was notified that proceedings had been commenced against it, in the High
Court, on behalf of 91 named claimants, Further, there are suggestions that there are at least as
many further claimants keen to join a ‘class action’ who have not done so to date.
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Commented [AP61]: Tony's advice was not to substitute
‘one course of action for another. Asit happens we will likely
cover the same points through the litigation. But even if we
were not covering these points through the litigation, Tony
still would have advised to shut down the TP review on
privilege grounds.
Commented [AP62]: This makes me nervous. Briefing BIS
will likely not be privileged. This should be limited to non-
privileged information (eg. providing them with the Letter of
Claim) but not disclose any privileged information eg. Views
on the merits of the claims / litigation strategy / etc.
~{ Commented [AP63]: Where possible we should try to tie
back TP's review to the idea that it was addressing the risk o
claims from postmasters. This helps maximize privilege
protection.
Commented [AP64]: POL instructed SQC not TP. This is
Important if we want to maintain privilege.
Private & Confidential ~ Subject to Legal Privilege
4
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Though at this stage there is still ong information available as to the quantum of the claims or the
basis on which the quantum could be estimated, the background to the claim covers a very wide
scope of issues ~ including those which were being addressed through my Review.
. The business is, naturally, having to take these Court proceedings extremely seriously. We have
engaged one of the most eminent Leading Counsel (Anthony de Garr Robinson QC) in the
preparation of our defence, supported by a firm of solicitors with detailed knowledge of the
matters since they have acted for us since the first complaints began to be received.
I have received very strong advice that the work previously being undertaken under my Review
should come to an immediate end and, instead, be carried forward under the scope of the
litigation.
Once litigation is contemplated, confidential investigations and work done for the dominant
purpose of furthering the litigation will be covered by litigation privilege. Any work going forward
should therefore be driven by the needs of the litigation and not for other reasons, such as the
my Review, so to maximise the protection of privilege. If work is not covered by privilege, this
may force Post Office to disclose sensitive material to the Claimants, undermining Post Office's
position in the litigation,
Given my duties to POLest-Office-timited as a director and its Chairman, I believe I must act in
accordance with this advice. I have therefore instructed that the work being undertaken pursuant
to my Review should now be stopped.
. However, the extent to which this work will cease is essentially one of form rather than substance.
Further, I do think it is important to note that:
- The work undertaken to date remains valuable and valid and will ikely be continued,
albeit in a different context;
- Theclaim against the Post Office is explicit, and records the actual detail (rather
thant our educated appreciation) of the complaints against POLthe-Rest-Oftice,
enabling us to address the precise grievances being made;
~The claim covers the same ground, and much other, as that envisaged by my
Review, providing reassurance that the process will surface a much wider range of
the issues to a much fuller extent;
- ACourt process, by definition, offers the parties to it the ultimate assurance of
independence in the examination of evidence and the determination of liability in a
way that no other forum or process can; and
- The proceedings will lead to a final determination of these matters, which is the
interest of all parties, and has so far eluded us, despite our best efforts,
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- The parties to the litigations include the high profile cases of which parliamentarians
and other stakeholders (such as Lord Arbuthnot) are aware. Itis therefore
incumbent on those Stakeholders to accept that those postmasters have elected to
pursue their claims through the courts and the Board of PO believes that this is now
the appropriate forum through which the Postmasters’ concerns should properly be
determined.
The Minister may ask whether POL would consider re-opening the Review, should the Claim not be
‘served! or fall away. If itis raised, our view is that such a commitment should not be made and
below are some speaking notes to that effect.
16. My Review was begun on the basis that it might provide compiainants,-the-Post Office with
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assurance that it had reasonably considered postmaster’s claims and appropriately defended its
‘own position. and,indeed, basis-fo-di fi
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if the litigation were discontinued by the Claimants, this would be a clear indication that thes
{and their legal team) do not believe their claims have merit, it should be noted that the
Claimants have a third party source of funding so they have had the benefit of full iegal advice
and the litigation will not be blocked on cost grounds.
13448, Hewever;iit is also clear from the litigation, and echoed in the interviews I undertook and
reports in the media, that my Review, albeit conducted at relative arms’ length from the business,
would still be viewed as an essentially ‘internal’ exercise. There seems therefore little value
benefit in re-engaging in an inetedib’y-expensive and time consuming exercise which would be of
materially less value to postmasters than the indevendent investigations and advice they will
have received from their own legal team through the litigation steps taken to date.-whichwould
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those dissatisfied for exampleyn any event, the 26 cases ae-now under consideration by the
CCRC (18 of which are named claimants in the Group Litigation) would continue. The CCRC's ;
whose-specific-role is to consider whether any of these cases could have been subject to a
miscarriage of justice and so this avenue of investigation will take place come what may.
48.20. Further, it is worth noting that as a result of the issues raised through the investigation of
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cases_as part of the Scheme, many changes have been made to improve POL’s operating
practices, including in relation to training and the type of support offered to Postmasters. We
alse. monitor branch performance more closely with a view to identifying ear‘ier problems that
Postmasters are having, so that where possible, issues do not escalate. We would expect any
equivalent lear igation to be similariy addressed.
‘ing arising from the iit